U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arnold C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120093856 Agency No. 4H-000-0003-06 DECISION Complainant timely filed an appeal from the Agency's August 25, 2009, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). This case is before us following a final decision in which the Agency found that it had not subjected Complainant to disparate treatment, harassment, and constructive discharge based on race, national origin, sex, disability, age, and reprisal for prior protected EEO activity. For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUES PRESENTED The issues presented are: (1) whether the Agency properly dismissed a portion of Complainant's complaint on the grounds that it failed to state a claim; (2) whether the Agency properly found that Complainant failed to provide sufficient evidence to establish that discrimination occurred; (3) whether the Agency violated the Rehabilitation Act when it subjected Complainant to a fitness-for-duty examination (FFDE); (4) whether Complainant established that he was denied reasonable accommodation for his disability; and (5) whether Complainant's retirement constituted a constructive discharge. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Plant Manager with the Postal Career Executive Service (PCES) at the Agency's Processing and Distribution Center (PDC) in Jacksonville, Florida. October 26, 2006, Report of Investigation (ROI, Vol.1), Aff. A, at 2. Complainant had been employed by the Agency in Jacksonville, Florida since 1973. Id. at 3. Nevertheless, on January 23, 2006, management informed Complainant that he would be involuntarily reassigned the following week on January 30, 2006, to a manager position in Mississippi. Complainant believed the reassignment was intended to be permanent. Id. at 2. After the reassignment date, another employee (Caucasian male over the age of 50) replaced Complainant as the Senior Plant Manager in Jacksonville, Florida. Id. at 2-3.2 The Vice President of Area Operations averred that he decided to reassign Complainant in order for the Agency to examine operational problems at the Jacksonville PDC in terms of service and budget. September 5, 2007, Report of Investigation (ROI, Vol. 2), Issues to be Investigated, at 50-51. Complainant, however, took sick leave and did not report to the position in Mississippi because he was experiencing major depression. ROI, Vol. 1, Aff. A, at 2. Complainant stated that he had been experiencing major depression since July 2003, requiring antidepressant medication. Id. at 24. Also, according to Complainant, management had been aware of his depression. Id. at 22-23. Complainant averred that management had previously signed his requests for leave based on his depression, and had asked him for medical records for the past two years. Id. Complainant stated that he did not believe it was in the best interests of his personal health to accept the reassignment due to his depression, which he had been experiencing for the past three years. Id. at 2. At the time of Complainant's reassignment there were two vacant PCES positions in Jacksonville to which Complainant believed he could have been reassigned instead. Id. at 3. Complainant felt that these vacancies, the Manager of the Bulk Mail Center (BMC), and the Postmaster of Jacksonville, were positions for which he was qualified because they were lower than his Senior Plant Manager position. Id. at 3. Complainant also stated that he had performed similar positions previously in his career. Id. The District Manager discussed with Complainant the possibility of being reassigned to the BMC Manager Jacksonville position instead of the Mississippi position. ROI, Vol. 1, Aff. B, at 3. However, the Vice President of Area Operations believed that Complainant would be a distraction to the Jacksonville Area and advised that Complainant should be transferred outside of the North District of Florida. Id. Complainant, after taking sick leave and not reporting to Mississippi as instructed, on February 17, 2006, submitted a certificate of disability from his psychiatrist to the Agency. ROI, Vol. 1, Ex. 4, at 1. The certificate noted that Complainant would not be able to return to work until approximately June 30, 2006. Id. Subsequently, on February 23, 2006, Complainant requested leave under the Family and Medical Leave Act (FMLA) and 720 hours of sick leave; the Agency approved the sick leave. ROI, Vol. 1, Aff. A, at 5. Thereafter, in a letter dated April 14, 2006, Complainant received notification requiring him to report for an investigative interview on April 21, 2006. ROI, Vol. 2, Issues to be Investigated, at 27. The letter noted that the purpose of the interview was to allow Complainant the opportunity to respond to allegations pertaining to "spot awards" he issued on December 23, 2005, totaling $32,500. Id. Complainant later was interviewed by a special agent from the Office of Inspector General concerning the same matter. ROI, Vol. 1, EEO Counselor's Report, at 50. On May 5, 2006, Complainant's psychiatrist submitted a letter to the Agency. ROI, Vol. 1, Ex. 15, at 1. The letter noted that Complainant was "totally disabled," unable to carry out his duties due to major depression, and that it was uncertain when he would be able to return to work. Id. Afterward, on May 9, 2006, Complainant received a letter directing him to report for a fitness-for-duty examination (FFDE). The Area Human Resources Manager required Complainant to submit to the FFDE, noting that Complainant's depression was not "evident prior to his abrupt leave of absence." ROI, Vol. 1, Aff. D, at 1. Complainant underwent the FFDE on May 12, 2006, after which the Agency's doctor found that Complainant was capable of reporting to work without restrictions. ROI, Vol. 1, EEO Counselor's Report, at 42. Thereafter, the Agency instructed Complainant that he could no longer use sick leave and ordered him to report to work on May 30, 2006. Id. at 40. Complainant advised the Agency that he would not report to work due to his disability, and instead used annual leave. Id. Complainant retired from the Agency on July 3, 2006. Id. Thereafter, on July 29, 2006, Complainant's psychiatrist submitted another letter to the Agency. ROI, Vol. 1, Ex. 4, at 2-4. The psychiatrist noted, among other things, that Complainant had been experiencing mood swings, helplessness, depression, stress, diminished energy, and a diminished appetite. Id. The psychiatrist also noted that Complainant was experiencing short-term memory difficulties and having trouble concentrating, focusing, and sleeping. Id. The psychiatrist further noted that Complainant had been prescribed antidepressant medication requiring a dosage of 30 milligrams per day. Id. The psychiatrist stated that, despite the Agency's May 12, 2006, FFDE finding that Complainant could return to work, Complainant still felt threatened emotionally and was unable to "cope with the normal demands of his job position." Id. The psychiatrist stated that Complainant still could not return to work at that time, noting that "[Complainant] was not calmed sufficiently to dare return to the work site with all of the emotions that were triggered." Id. On April 23, 2006, Complainant filed a formal EEO complaint. Complainant amended his complaint on several occasions between April 23, 2006 and June 12, 2006, alleging that the Agency subjected him to disparate treatment and harassment based on race (Caucasian), national origin (American), sex (male), disability, age (56), and reprisal for prior protected EEO activity when: 1. on January 30, 2006, he was reassigned from his Senior Plant Manager position in Jacksonville, Florida, to a Plant Manager position in Mississippi; 2. on April 17, 2006, he received notification to report for an investigative interview on April 21, 2006; 3. on May 9, 2006, he received a letter directing him to report for a fitness-for-duty examination (FFDE); 4. beginning on May 30, 2006, he was forced to use annual leave because he did not want to report for duty; 5. on June 1, 2006, he was interviewed by the Office of Inspector General (OIG) during an investigation; and 6. on July 3, 2006, he was forced to retire, which constituted constructive discharge. On June 14, 2006, the Agency issued a partial acceptance/partial dismissal of Complainant's EEO Complaint. Therein, the Agency accepted claims 1, 3, and 4, but dismissed claims 2, 5, and 6 for failure to state a claim.3 At the conclusion of the investigation on October 28, 2006, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On May 3, 2007, the AJ dismissed the matter as a mixed case, instructing the Agency to issue a decision with mixed-case appeal rights to the Merit Systems Protection Board (MSPB).4 By final decision dated March 31, 2008, the MSPB denied jurisdiction over the matter, finding that Complainant voluntarily retired, which was not the result of coercion, duress, misinformation, or a hostile work environment. Thereafter, Complainant again requested a hearing before an EEOC AJ, but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency therein concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, in its final agency decision (FAD) the Agency noted that it had articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim 1, the Agency noted that a change in leadership at the Jacksonville PDC was in the best interests of the organization. FAD at 22. The Agency noted that the Jacksonville PDC was experiencing performance problems with respect to its budget and service commitments, which resulted in an evaluation by a national review team. Id. Regarding claim 3, the Agency noted that it had approved 720 hours of sick leave for Complainant from February 2006 through June 30, 2006. Id. at 23.5 The Agency also noted that Complainant had applied for Family and Medical Leave Act (FMLA) coverage. Id. at 24. As for claim 4, the Agency noted that the May 12, 2006, FFDE found that Complainant was fit for duty, and therefore it informed Complainant that he would no longer be carried on sick leave. Id. at 24. The Agency noted that Complainant failed to establish that its legitimate, nondiscriminatory reasons were pretext for discrimination. In regard to claim 6, the Agency noted that its actions were not severe or pervasive enough to rise to the level of a hostile work environment. Id. at 28. The Agency also noted that management's actions were not so intolerable that a reasonable person would have been compelled to retire.6 The Agency also noted that Complainant failed to establish that he was a qualified individual with a disability under the Rehabilitation Act. In particular, the Agency noted that there was no medical evidence indicating that Complainant's condition was permanent or long-term or how frequent his symptoms occur. The Agency noted that Complainant's evidence did not satisfy his burden to prove that he was an individual with a disability. The Agency also noted that Complainant was not qualified, noting that Complainant admitted that he could not perform his job duties at least through June 30, 2006. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency improperly dismissed claims 2, 5, and 6. Complainant's Appeal Brief, at 2. Complainant states that the Agency used the wrong standard for retaliation. Id. Complainant further contends that he is substantially limited in a major life activity, and therefore is disabled within the meaning of the Rehabilitation Act. Id. at 6. Complainant asserts that the Agency has made false statements pertaining to his pay and its knowledge of his prior protected activity. Id. at 8. Complainant maintains that the Agency has failed to follow its procedures and policies pertaining to adverse personnel actions, fitness-for-duty exams, and second and third opinions pursuant to the FMLA. Id. Complainant contends that the Agency deliberately made his working conditions intolerable with the intent of forcing him to retire. Id. at 12. Complainant further contends that the Agency's decision to transfer him to Mississippi was designed to force him to retire. Id. Complainant asserts that Vice President of Area Operations had knowledge of his protected activity because Complainant named him as a responsible management official in his initial EEO complaint. Lastly, Complainant notes that he was directed to submit to an investigative interview in April 2006, wherein he was accused of engaging in criminal conduct. Id. at 13. The Agency argues that Complainant has never presented any material evidence to support his claims of discrimination, that Complainant has failed to rebut any of the arguments set forth in the FAD, and that the FAD should be affirmed. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Partial Dismissal of Claims 2 and 5 We find that the Agency properly dismissed claims 2 and 5 regarding the investigative interview and the OIG interview, respectively, for failure to state a claim. The Commission determines that Complainant has not suffered a present harm or loss regarding a term, condition or privilege of employment relating to this matter. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In regard to investigative interviews, the Commission has repeatedly found that being subjected to an agency investigation does not render an individual aggrieved where the individual has not suffered an adverse action as a result of the investigation. See Jones v. Dep' t of the Army, EEOC Request No. 05A00428 (Mar. 1, 2002). Based on a review of the instant record, it does not appear that the investigative interviews resulted in any discipline or other adverse action. See Blake v. U.S. Postal Serv., EEOC Appeal No. 0120063749 (May 1, 2007). Dismissal of Claims 3 and 6 In its decision, the Agency initially dismissed claim 3 regarding the FFDE, finding that it was a collateral attack on the FMLA process and failed to state a claim. We disagree. The Commission has consistently held that where a complainant claims that he or she was unlawfully required to take a FFDE, such an allegation states a claim of employment discrimination. Being required to undergo a FFDE concerns a term, condition, or privilege of complainant's employment. See Price v. U.S. Postal Serv., EEOC Appeal No. 0120083470 (Dec. 18, 2008). We also find that the Agency improperly dismissed claim 6 regarding constructive discharge. We note that Complainant contends that he involuntarily retired and was constructively discharged as a result of the denial of his sick leave. However, at the time Complainant sought EEO counseling, he had not yet retired. We have held that where a complainant received EEO counseling on a future action which ultimately occurs, the otherwise premature allegation merges with the effectuated action. See Lacy v. General Serv. Admin., EEOC Appeal No. 01A01743 (June 1, 2000); Rose v. Dep't of Veterans Affairs, EEOC Request No. 05950240 (July 27, 1995). Disparate Treatment (Claim 1, Reassignment from Florida to Mississippi) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmtv. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, with respect to claim 1, we find that Complainant has failed to establish a prima facie case of disparate treatment based on race, national origin, sex, age, and reprisal. We find that Complainant has failed to identify an employee outside of his protected classes who was treated more favorably under similar circumstances. We note that the record reflects that a Caucasian male employee who was over the age of 50 replaced Complainant as the Senior Plant Manager at the Agency's PDC in Jacksonville, Florida. We also find that Complainant failed to establish that the Vice President of Area Operations, who was responsible for the reassignment, had knowledge of Complainant's prior protected EEO activity. On appeal, Complainant contends that the Vice President of Area Operations was aware of his protected activity because he was a named management official in Complainant's initial EEO complaint. However, Complainant's EEO contact did not occur until February 9, 2006, which was after his reassignment. Fitness-for-Duty Examination (Claim 3) With respect to claim 3, the Rehabilitation Act7 allows employers to make disability-related inquiries or require medical examinations of employees only if it is job-related and consistent with business necessity. 29 C.F.R §§ 1630.13(b), 14(c). Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition." See EEOC Enforcement Guidance, Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), Q.4 (July 26, 2000). In the instant case, we conclude that the FFDE violated the Rehabilitation Act's prohibition against disability-related inquiries which are not "job-related and consistent with business necessity." Specifically, the Area Human Resources Manager testified that he required Complainant to submit to the FFDE because Complainant's depression was not "evident prior to his abrupt absence." ROI, Vol. 1, at 16. Further, the Manager of Diversity and Human Capital testified that "Complainant's inability to report for work after he refused to accept an involuntary reassignment" was a factor in the decision to schedule the FFDE. Id. at 17. The record clearly reflects that the Agency initiated the FFDE because it did not believe Complainant's or his psychiatrist's assertion that Complainant was unable to perform his duties due to his condition. See Cofield-Gipson v. Dep't of Justice, EEOC Appeal No. 0120073270 (July 9, 2010) (citing Bernal v. U.S. Postal Serv., EEOC Appeal No. 0720080038 (June 17, 2008) (agency violated the Rehabilitation Act when it requested medical information where it did not believe that complainant's medical condition impaired his ability to perform essential functions of his position)). We note that prior to its request that Complainant submit to the FFDE, the Agency had already received a May 5, 2006, letter from Complainant's psychiatrist. The letter noted that Complainant was unable to carry out his duties due to his major depression. The Agency has failed to meet its burden of proof. We conclude that the Agency did not demonstrate that the FFDE that Complainant was required to undergo was job-related or consistent with business necessity. Therefore, the Agency has violated the Rehabilitation Act. Reasonable Accommodation (Claim 4) The Commission determines that a fair reading of Complainant's allegations with respect to claim 4 reveals that Complainant is, in essence, raising a claim of denial of reasonable accommodation. Specifically, we find that Complainant is alleging that the Agency failed to provide him with a reasonable accommodation for his disability when he was denied sick leave and ordered to return to work. The gist of this claim is that the Agency's decision to reassign Complainant to the Mississippi facility exacerbated his depressive disorder to the point that he became unable to work, and that the Agency failed to provide a reasonable accommodation that would have allowed him to return to work. Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause undue hardship. 29 C.F.R. § 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an "individual with a disability," as defined by 29 C.F.R. § 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F. R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). Individual with a Disability An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. § 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997) An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id. Complainant alleged that he experienced major depression beginning in July 2003, which was exacerbated by work-related stress. ROI, Vol. 1, at 24. Complainant indicated that he experienced from a variety of symptoms, including insomnia, difficulty with concentration and thinking, short term memory problems, mood swings, anxiety, and a lack of confidence. Id. The record contains a May 5, 2006, letter from Complainant's psychiatrist, noting that Complainant was being treated for major depression and was totally disabled. Another letter from Complainant's psychiatrist, dated July 29, 2006, noted that Complainant experienced "increasing short term memory difficulties, knowing what was going on, and increasingly writing things down was more difficult for him to concentrate and focus on multiple matters concerning his job." ROI, Vol. 1, Ex. 4, at 2-4. Complainant's psychiatrist noted that Complainant suffered from a number of symptoms, including mood swings, insomnia, helplessness, depression, agitation, stress, diminished energy, and a diminished appetite. Specifically, Complainant's psychiatrist noted that "[Complainant] remained threatened emotionally, vulnerable, and [had a] helpless feeling [unable] to cope with the normal demands of his job position." Id. Complainant's psychiatrist noted that the "stress connected with [Complainant's] employment recently had taken a toll on his marriage and dealings with his family." Id. Complainant's psychiatrist noted that Complainant's antidepressant medication was increased, which "did lessen a degree of acute agitation and mood swings, although he was not calmed sufficiently to dare return to the work site with all of the emotions that were triggered." Id. Upon review, we find that Complainant is substantially limited in the major life activity of concentrating. See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011), req. for recon. den'd, EEOC Request No. 0520110498 (Feb. 4, 2014)(finding that complainant who had major depression, which related to occupational stressors, was substantially limited in major life activity of concentrating)(citing Holland v. Soc. Sec. Admin., EEOC Appeal No. 01A01372 (Oct. 2, 2003), req. for recon den'd, EEOC request No. 05A40191 (June 29, 2004) (finding that complainant's obsessive compulsive disorder and major depression caused him to be substantially limited in major life activity of concentrating because his "reports of excessive worrying, intrusive thoughts, uncontrollable and repetitive checking behavior affecting numerous daily activities, poor sleep, and depressed mood . . . substantially affected his ability to concentrate")). Therefore, we find that Complainant has established that he is an individual with a disability under the Rehabilitation Act. Qualified Individual After establishing that he is an individual with a disability, Complainant must establish that he is a "qualified" individual with a disability, which is defined as an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). Here, we find that, after receiving notice of his impending transfer, Complainant's depression worsened to the point that he was not able to perform the essential functions of his Jacksonville Senior Plant Manager position with or without reasonable accommodation. As Complainant stated himself, he was responsible for over 2,500 employees, five mail processing facilities located in Jacksonville, and plants located in Daytona Beach, Gainesville, Tallahassee, Panama City, and Pensacola. ROI, Vol. 1, Aff. A, at 3. Complainant's psychiatrist wrote that "despite an independent medical evaluation stating that he had been stabilized enough away from work that he could return to work, [Complainant] remained threatened emotionally, vulnerable and helpless feeling to cope with the normal demands of job position." ROI, Vol. 1, Ex. 4, at 3. Based on Complainant's statements and medical documentation, the record clearly reflects that Complainant, due to his mental condition, was unable to perform the essential functions of his Senior Plant Manager position with or without accommodation. We note, however, that the discussion of qualified does not end at Complainant's Senior Plant Manager Jacksonville Position. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720100037 (Mar 26, 2014). As noted above, the term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term "position" is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002). Therefore, in determining whether an employee is a qualified individual with a disability, an agency must look beyond the position which the employee presently encumbers. Id. We note that an agency is required to engage in the interactive process with a complainant in order to determine what reasonable accommodation is necessary, including the possibility of reassignment. To establish entitlement to a reassignment, a complainant must show that a vacant, funded position existed during the relevant time period or was likely to open up. See Reasonable Accommodation Guidance at Q.24; Shimmin v. Dep't of Homeland Sec., EEOC Appeal No. 0120072428 (June 4, 2009). A complainant can establish that vacant, funded positions exist by: (1) producing evidence of particular vacancies: or (2) showing that he is qualified to perform a job or jobs which exist at the agency, and there are trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). Here, we note that Complainant specifically indentified two vacant positions for which he asserted he was qualified. As noted above, the District Manager discussed with Complainant the possibility of being reassigned to the BMC Manager Jacksonville position. However, the Vice President of Area Operations wanted Complainant moved outside of the North District of Florida. Although the Vice President of Area Operations felt that Complainant would be a distraction if he remained in the district, neither he nor any other management official disputed Complainant's assertion that he could have performed the essential functions of either the vacant Manager of the BMC or the vacant Postmaster of Jacksonville positions. As such, we find that Complainant has established that he is a qualified individual with a disability within the meaning of the Rehabilitation Act. Denial of Reasonable Accommodation As set forth above, under the Commission's regulations an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability, unless the Agency can show that accommodation would impose an undue hardship. 29 C.F.R. § 1630.9. In the record, management only states that Complainant never requested reasonable accommodation. ROI, Vol. 1, Aff. B, at 8. Under the Rehabilitation Act, an employee is not required to use the specific words "reasonable accommodation" when making a request. See Reasonable Accommodation Guidance, at Q.1. We find that Complainant's request for sick leave combined with his psychiatrist's letter that he was unable to return to work due to his condition was sufficient to put the Agency on notice of his request for reasonable accommodation. See Lyons v. Dep't of Veterans Affairs, EEOC Appeal No. 0120053779 (Feb. 6, 2008). In the instant case, the Agency does not dispute that it failed to engage in the interactive process, but instead advised Complainant to return to work. We note that Complainant specifically identified the two vacant, funded positions in Jacksonville, Florida to which he believed that he could have been reassigned. The Commission's regulations explicitly state that an employer must reassign an affected individual to a vacant position that is equivalent based on relevant factors, including geographical location. See Reasonable Accommodation Guidance. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower-level position for which the individual is qualified. Id. There is no dispute that the Agency did not offer Complainant the lower-level vacant positions he specifically identified in Jacksonville. The Agency has not shown that reassigning Complainant to one of the vacant positions would have resulted in undue hardship. Further, the Agency did not engage in the interactive process with Complainant with regard to his depression; rather, it sent him for a FFDE that we have already determined violated the Rehabilitation Act. Because the Agency failed to engage in the interactive process, and there was a reasonable accommodation available (local reassignment), we find that Complainant established that he was denied reasonable accommodation for his disability as alleged. In addition, we find that Complainant is entitled to compensatory damages for the Agency's failure to accommodate him. Where a discriminatory practice involves the provision of a reasonable accommodation, damages may be awarded if the agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for his disability. 42 U.S.C. § 1981a(a)(3); Gunn v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007). In this case, we find that the Agency's request that Complainant undergo a FFDE after receiving sufficient medical information from Complainant's psychiatrist, coupled with its failure to engage in the interactive process, evidences bad faith. Complainant is therefore entitled to present a claim for compensatory damages on the Agency's failure to accommodate him. See West v. Gibson, 527 U.S. 212 (1999). Constructive Discharge (Claim 6) Initially, with respect to claim 6, we note that the MSPB dismissed Complainant's appeal, finding that Complainant left the Agency voluntarily and was not constructively discharged. Notwithstanding the Agency's contentions, we find that the "voluntary" determination by the MSPB in dismissing Complainant's appeal does not preclude the EEOC from adjudicating the merits of a constructive discharge claim, nor is the Commission required to adopt this finding. Instead, under such circumstances, the Commission has held that MSPB findings are not res judicata with regard to a complainant's claim of constructive discharge. See Holland v. Social Security Admin., EEOC Appeal No. 01A01372 (citing Borghese v. Dep't of Defense, EEOC Request No. 05920734 (Nov. 27, 1992)) (noting that the MSPB's standard for determining whether a complainant's resignation or retirement is voluntary is different from the Commission's standard regarding constructive discharge). In the instant case, based on our review of the record, we find that Complainant's disability retirement is tantamount to a constructive discharge. With regard to forced retirement, constructive discharge occurs when an employer deliberately renders an employee's working conditions so intolerable that the individual is forced to retire from his position. The Commission has established three elements which Complainant must prove to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exch. Serv., EEOC Request No. 05900630 (July 20, 1990); see also Perricone v. U.S Postal Serv., EEOC Request No. 05900135 (June 11, 1990). Here, we determine that the record supports a finding that, rather than engage in the interactive process with Complainant, Agency management compelled Complainant to apply for retirement by presenting him with only two options: (a) retirement or (b) reporting for work, thereby placing Complainant at high risk for difficulties with respect to his major depression. In finding that Complainant's choice was limited to these two options, we note that the Agency never considered reassignment or continued sick leave. See Jambora v. U.S. Postal Serv., EEOC Appeal No. 07A40128 (May 16, 2006). In Jambora, complainant alleged that he was forced into disability retirement and constructively discharged when he was denied reasonable accommodation for his disability. We found that the complainant in Jambora was denied reasonable accommodation and constructively discharged because management failed to engage in the interactive process and compelled her to apply for disability retirement by only presenting her with a position that was harmful to her disability. Further, in Holland, EEOC Appeal No. 01A01372, we found that a complainant who had obsessive compulsive disorder and depression was also constructively discharged when management failed to provide him reasonable accommodation. In Holland, we found that, due to the agency's failure, the complainant's only choice was to retire because his position negatively affected his disability. In the instant case, the Agency requested that Complainant return to work and denied his further requests for sick leave even though Complainant and his psychiatrist explained that he could not return to work at that time due to his major depression. Not believing Complainant or his psychiatrist, the Agency submitted Complainant to a FFDE, which it used to deny him further use of sick leave for his disability. The Agency did not provide him with any form of reasonable accommodation after it denied him sick leave. As a result, Complainant took annual leave for one month then retired. During this time, the Agency presented Complainant with no accommodations. We find that due to the Agency's failure, Complainant was left with no other choice but to retire. Therefore, we find that Complainant's retirement amounted to a constructive discharge. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision, and REMAND this case to the Agency to take remedial actions in accordance with this decision and Order below. ORDER The Agency is ordered to take the following remedial action: (1) Within ninety (90) calendar days of the date this decision becomes final, the Agency shall offer Complainant a Postal Career Executive Service level position within the Jacksonville area, or another position mutually agreed to by both the Agency and Complainant, retroactive to the effective date of Complainant's retirement, July 3, 2006, with all the rights, benefits, and privileges. The Agency shall afford Complainant fifteen (15) days to determine whether to accept reinstatement. Should Complainant reject the offer of reinstatement, Complainant's entitlement to back pay shall terminate as of the date of rejection. (2) Within ninety (90) calendar days of the date this decision becomes final, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due to Complainant, pursuant to 29 C.F.R. § 1614.501. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the Complainant for the undisputed amount within ninety (90) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." (3) Within thirty (30) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.108(f). (4) Within ninety (90) days of the date on which this decision becomes final, the Agency shall provide EEO training for the Agency officials involved in the decision to send Complainant for the fitness-for-duty examination. Such training shall focus on rights and obligations under the Rehabilitation Act. The Commission notes that such training is not considered disciplinary in nature. (5) Within ninety (90) days of the date on which this decision becomes final, the Agency shall provide EEO training for the Agency officials responsible for the denial of reasonable accommodation to Complainant. The training shall concern the Rehabilitation Act with an emphasis on reasonable accommodation and the Agency's duties to ensure that similar violations do not occur. (6) The Agency shall consider taking disciplinary action against the Agency officials found to have discriminated against Complainant. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Processing and Distribution Center in Jacksonville, Florida copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Nov. 3, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Complainant, in his appeal brief, notes that the employee was over the age of 50. 3 The Agency nevertheless proceeded to address claim 6 on the merits, finding no discrimination. 4 The AJ found that the Agency improperly dismissed claim 6 and ordered the Agency to conduct a supplemental investigation on the claim. The Agency completed the supplemental investigation on September 5, 2007 (ROI, Vol. 2). 5 Alternatively, in its decision, the Agency dismissed claim 3, finding that it was a collateral attack on the FMLA process and thus failed to state a claim. 6 The Agency alternatively dismissed claim 6 pursuant to 29 C.F.R § 1614.107(a)(1) and (a)(5), disagreeing with the AJ, finding that Complainant requested pre-complaint counseling on the constructive discharge issue a month prior to his retirement. Therefore, the Agency found that Complainant's allegation was premature and not ripe for consideration. 7 We note that this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability," infra. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120093856 2 0120093856